HLS ASIA LTD., NEW DELHI v. DCIT, CIRCLE- 12(1), NEW DELHI

ITA 3879/DEL/2017 | 2006-2007
Pronouncement Date: 31-03-2021 | Result: Allowed

Appeal Details

RSA Number 387920114 RSA 2017
Assessee PAN AAACH0627H
Bench Delhi
Appeal Number ITA 3879/DEL/2017
Duration Of Justice 3 year(s) 9 month(s) 15 day(s)
Appellant HLS ASIA LTD., NEW DELHI
Respondent DCIT, CIRCLE- 12(1), NEW DELHI
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 31-03-2021
Assessment Year 2006-2007
Appeal Filed On 15-06-2017
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI C BEN CH NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.K. BILLAIYA ACCOUNTANT MEMBER ITA NO. 3879/DEL/2017 [ASSESSMENT YEAR: 2006-07] HLS ASIA LTD VS. THE D.C.I.T C 2 SECTOR 17 CIRCLE 12(1) NOIDA NEW DELHI PAN : AAACH 0627 H [APPELLANT] [RESPONDENT] DATE OF HEARING : 31.03.2021 DATE OF PRONOUNCEMENT : 31.03.2021 APPELLANT BY : SHRI ANKIT ARORA CA REVENUE BY : SHRI VIPUL KASHYAP SR. DR ORDER PER N.K. BILLAIYA ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] 18 NEW DELHI DATED 10.04.2017 PERTAINING TO ASSESSMENT YEAR 2006-07. 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT T HE LD. CIT(A) ERRED IN CONFIRMING THE PENALTY LEVIED BY TH E ASSESSING OFFICER U/S 271(1)(C) OF THE INCOME TAX ACT 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. 3. AT THE VERY OUTSET THE LD. COUNSEL FOR THE ASS ESSEE STATED THAT THE ASSESSMENT HAS BEEN FRAMED PURSUANT TO THE DIRE CTIONS OF THE PCIT U/S 263 OF THE ACT AND PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN LEVIED ON THE ADDITIONS/DISALLOWANCES MADE IN SUCH ASSESSM ENT ORDER DATED 28.03.2013. IT IS THE SAY OF THE LD. COUNSEL FOR T HE ASSESSEE THAT THE ORDER OF THE PCIT FRAMED U/S 263 OF THE ACT WAS CHA LLENGED BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 06.02.20 20 IN ITA NO. 1712/DEL/2010 AND OTHERS HAVE QUASHED THE ORDER OF THE PCIT FRAMED U/S 263 OF THE ACT. THE LD. COUNSEL FOR THE ASSESS EE CONCLUDED BY SAYING THAT SINCE THE VERY BASIS OF THE LEVY OF PEN ALTY U/S 271(1)(C) OF THE ACT HAS BEEN REMOVED NO PENALTY SHOULD BE LEVI ED U/S 271(1)(C) OF THE ACT. 4. THE LD. DR FAIRLY CONCEDED TO THIS. 3 5. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT THE PENALTY ORDE R DATED 27.09.2013 HAS BEEN PASSED LEVYING PENALTY U/S 271(1)(C) OF TH E ACT ON THE ADDITIONS/DISALLOWANCES MADE IN THE ASSESSMENT ORDE R DATED 28.03.2013. IT IS EQUALLY TRUE THAT THE ASSESSMENT ORDER DATED 28.03.2013 WAS FRAMED U/S 143(3)/263 OF THE ACT. 6. WE FIND THAT THE ORDER U/S 263 OF THE ACT WAS CH ALLENGED BEFORE THIS TRIBUNAL AND THIS TRIBUNAL IN ITA NO. 1712/DEL /2010 & OTHERS HAD QUASHED THE SAID ORDER. THE RELEVANT FINDINGS OF T HE CO-ORDINATE BENCH READ AS UNDER: 59. SO FAR AS QUESTION OF ASSESSMENT ORDER BEING P REJUDICIAL TO THE INTEREST OF THE REVENUE AS HAS BEEN HELD BY THE LD. CIT IS CONCERNED ALLOWING ADDITIONAL DEPRECIATION WHICH W OULD OTHERWISE HAVE BEEN AVAILABLE AS NORMAL DEPRECIATION DOES NOT LEAD TO ANY PREJUDICE TO THE REVENUE AS THE ASSESSEE WOULD ONLY BE ENTITLED TO 100% OF THE COST OF THE ASSET BY WAY OF ADDITIONAL DEPRECIATION PLUS NORMAL DEPRECIATION OR IN THE ALTERNATIVE AS N ORMAL DEPRECIATION OVER THE YEARS. 4 60. LD. DR FOR THE REVENUE SUPPORTED THE ORDER PASS ED BY THE LD. CIT ON THE ONLY GROUND THAT THE ASSESSEE IS NOT ENG AGED IN THE ITA NO.4144/DEL./2014 ITA NO.2208/DEL./2014 ITA NO.3708 / DEL./ 2012 ITA NO.5511/DEL./2012 ITA NO.323/DEL./2012 ITA NO.5855/DEL./2011 ITA NO.2241/DEL./2014 MANUFACTURE OF ANY ARTICLE OR THING BUT THIS ISSUE IS NO LONGER RES I NTEGRA AS ASSESSEE IN ITS OWN CASE HELD TO BE ENGAGED IN MANUFACTURE O R PRODUCTION OF AN ARTICLE OR THING. MOREOVER SINCE THE LD. CIT ON LY MODIFIED THE ASSESSMENT DIRECTING THE AO TO WITHDRAW THE DEDUCTI ON FOR ADDITIONAL DEPRECIATION ALLOWED U/S 32(1)(IIA) BUT HAS NOT SET ASIDE THE ASSESSMENT TO BE FRAMED AFRESH EXPLANATION 2 T O SECTION 263 OF THE ACT RELIED UPON BY THE LD. DR FOR THE REVEN UE IS NOT ATTRACTED. SO WE ARE OF THE CONSIDERED VIEW THAT A RGUMENTS ADDRESSED BY THE LD. DR AND HIS RELIANCE ON UMPTEEN NUMBER OF JUDGMENTS IS NOT APPLICABLE TO THE FACTS AND CIRCUM STANCES OF THE CASE. CONSEQUENTLY IMPUGNED ORDERS PASSED BY THE L D. CIT U/S 263 OF THE ACT BOTH DATED 31.10.2011 FOR AYS 2006-07 & 2007-08 ARE NOT SUSTAINABLE IN THE EYES OF LAW HENCE ORDERED T O BE QUASHED. 7. SUBLATO FUNDAMENTO CADIT OPUS MEANING THEREBY THAT IN CASE THE FOUNDATION IS REMOVED THE SUPER STRUCTURE FALL S. SINCE THE FOUNDATION [ASSESSMENT] HAS BEEN REMOVED THE SUPER STRUCTURE I.E. PENALTY MUST FALL. ACCORDINGLY THE PENALTY IS DIR ECTED TO BE DELETED. 5 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 4375/DEL/2017 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31.03. 2021 IN THE PRESENCE OF BOTH THE RIVAL REPRESENTATIVES . SD/- SD/- (BHAVNESH SAINI) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MARCH 2021. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT ASST. REGISTRAR 4. CIT(A) ITAT NEW DELHI 5. DR 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER